VA awarded SMC-S, then removed. Don't understand why?

[HitemStraight]

My claim was filed in Feb, 2014 and awarded in July, 2015. I am 100% schedular for back disability. I was awarded SMC-S during rehab (additional 100% ratings after surgery) for 2 hip replacement surgeries (in fall of 2004 & spring of 2005), secondary to the 100% schedular rating. The rehabs overlapped and SMC-S was awarded for total of 17 months (100% plus additional 60%). After the 17 months for rehab, I was awarded 30% for each hip for a total of 60% additional. The SMC-S was retro for the 17 months during 2004-2006, then they took it away after the 17 months in May, 2006. Shouldn't the SMC-S have continued based on the two 30% hip awards ((if added = 60%; if combined = 60% with bilateral factor (30% + 30% combines to 51%, plus 5.1% bilateral = 56.1% rounded to 60%)). This should qualify to continue on with SMC-S beyond May, 2006 when VA removed it.

Am I correct?

Need help understanding, thanks !!

(this post was re-worded from previous post under different title)

 

 

 

Edited August 17, 2015 by HitemStraight

[Berta]

No, that is the statement of legal error that awarded my CUEs at the RO level...this is not a BVA decision,this vet has, so  no remand needed at all...

If you google M21-1MR SMC inferred issue, lots will pop up.

Dont miss the YUKU VBN posts there either...

I think the first link there is all you need but you might find something better in the other links...I am sorry that I am dealing with the new board as well as a new PC I got last Wednesday and cannot seem to post links like I used to.....

and have to figure a lot out on this end. It is almost like having a beautiful brand new baby, and bring it home from the hospital and then wondering what the heck to do with it....

 

Part IV, Subpart ii, Chapter 2, Section H. Special Monthly ...

www.benefits.va.gov/.../m2...

United States Department of Veterans Affairs

Combining Disabilities When Entitlement to SMC is at Issue .... The denial of SMC, whether specifically claimed by the veteran or inferred by the rating .... to a higher A&A allowance under 38 U.S.C. 1114(r), see M21-1MR, Part IV, Subpart ii, 2.

[DOC]Section B. Determining the Issues - Veterans Benefits ...

www.benefits.va.gov/.../m2...

United States Department of Veterans Affairs

M21-1MR, Part III, Subpart iv, Chapter 6, Section B ... due to epididymitis that could qualify for Special Monthly Compensation (SMC) at the (k) rate. ... This topic contains information about inferred issues and ancillary benefits, including.

[DOC]Section F. Compensation Based on Individual Unemployability

www.benefits.va.gov/.../m2...

United States Department of Veterans Affairs

Reference: For more information on scheduling examinations, see M21-1MR, ..... Do not put entitlement to SMC at issue, however, unless SMC benefits will be ...

[HitemStraight]

Thanks for your comments .....

I know there has been numerous disagreement in other posts regarding the how the VA determines the 'additional 60%' in SMC-S claims. Some believe they simply add the percentages together (simple math). Others believe that VA uses the combined ratings table to arrive at the 'additional 60%'. If the combined ratings table is used, then the bilateral must be applied, per regulation, 38 CFR 4.26 that Bertha provided earlier in this post. 

I this particular case ..... if VA simply added the two 30&'s, then we get 60%; should qualify for SMC-S. If VA combined the two 30%'s, then we get 51%. With bilateral factor applied (10% = 5.1%) then we get 56.1%, rounded to 60%. Either way we get to 60% and they should have awarded the SMC-S ongoing from May 2006. 

The only thing I can come up with is that the VA Rater did not apply the bilateral factor after combining the two 30%'s, thereby only coming up with 51% and denying the SMC-S at that point ...... and that sure would be a CUE. 1) did not apply the law and 2) the result would be different - i.e. retro should be paid for over 9 years !! 

Broncovet, as far as 'failed to consider' me for SMC-S is concerned. As per the decision explanation from my award letter posted above from the VA, they did award SMC-S for the convalescence period, when the additional 100% ratings were in effect for 17 months. So, they got it right there!! They used, 38 U.S.C. 1114(s) 'single 100% rated disability plus additional disability(s) independently rated at 60% or more', as basis for that. So the precedence was set in this decision, they just didn't continue on when the ratings were reduced to 30% for each hip after the convalescence periods (see above scanned decision explanations). As I mentioned in previous paragraph - I believe the rater made an error (CUE) in applying the bilateral factor.

If I do have a CUE (which I think we agree I do) can you tell me the best way to file it. In a letter by mail to the RO with DRO review?

Bertha, you have mentioned VA Central by email and I have heard the name of Ms. Hickey. I am somewhat new to these posts, so can you give me some information regarding these. Can CUE's be filed via email? How do you IRIS?

I believe saw BVA decisions which addressed this similar topic of adding %'s, combining, bilateral etc. I need to search for them to include as backup in a CUE.

Thanks

 

[Berta]

I have filed many CUEs via Iris. One in 2005 got me a double DRO review.

Go to www.va.gov.

Click on the Contact us button, then on the Ask a question button, then the IRIS page will pop up ( or you will redirected to it.)

I always prepare my IRIS stuff in word first ,to edit or state it as best as I can,and then copy and paste it into the Inquiry section.

Lately I have used the Service complaint  pop down  box.

It takes some time to fill in all the sub topic areas and the dates of service etc etc...but not only will  VACO get the complaint, your VARO will too.

What VARO is this? I might have some email addys or phone numbers for their director and VSMs.

Ms Hickey is a one star General I believe, and also the Under Secretary of the VA. she is at allison.hickey@va.gov

She is user friendly, unlike most VAROs .

Then again you might want to send them a formal letter regarding the CUE.

If the decision is less than one year old ,you can file this as a GTY CUE....my tactic for getting VA to GO CUE Themselves

This does not stop the NOD year deadline however but can stave off a need for an NOD if they react to the CUE.

I sure dont call it a 'GCY' VA cue in this type of claim .I state it is a CUE within a recent decision that is detrimental to me.

It has worked for me, NVLSP was surprised it did in the 2012 award  under Nehmer and also it worked for someone else here (Rcowell I think, )

It is explained here under a Getting VA to CuE themselves post under a search.

I pulled something else on them too. I filed a timely NOD after I filed the GCY claim. I added to the NOD that this is also a request for extention of NOD deadline for "good cause" (with a BVA rendition of what that means) and told them that one cannot properly prepare a viable NOD on an illegal decision and that if the extension was denied I would appeal that to the BVA.

If they do the claim correctly however there would be no need for the extension or even for the NOD.

They tried to  establish my NOD date as April 2015 and I contacted the IG because that is data manipulation. Some rep from my RO called me last week to say it had been re established to the proper October 2012 date.

As you can see, some ROs are very reluctant to deal with CUEs but my 1151 CUE a few months ago was easy for them to award.

This one means they have to add, multiply, and subtract  and then apply a regulation they dont seem to want to deal with at all.I also advised them yesterday to contact the Regional counsel or General Counsel -VA as they had to intervene in 2 past errors my RO made to the tune of  almost a 100 thousand they didnt want to pay me, by their sending to VA the exact same regs I had sent, with a letter or phone call, to pay me what they owed me.

Yes this is a CUE you have here. Personally I would file it via IRIS as a complaint. It wont collect dust in a mail room that way.

 

 

 

 

 

 

Edited August 14, 2015 by Berta

[broncovet]

Berta

   Thank you for posting the M21's on inferring SMC S when a single 100% is awarded.  This is exactly what happened to me, only VARO confused the issue by adjuticating SMP housebound, instead of SMC S housebound.    Im also going to take into consideration your suggestion of filing CUE via IRIS.  I think that is a good idea because it does not go "just to the RO" (where the RO can simply ignore it) , but to where ever it is they process IRIS emails, too.  It creates a documented paper trail, that VARO's hate.  

Hitemstraight:  

    You need to keep reminding yourself, over and over, what Supreme Court Justice, Roberts said:  The VA takes a position that is substantially unjustified against the Veteran (between 50% and 70%) of the time.    The reason is clear:  The VA knows that many Vets will die or give up on their appeals.  In fact, they have at least 2 deadlines the Veteran must meet just to keep the appeal alive.  So, they just tie them up in unnecessary paperwork.  Then, years later, if the Veteran persists, the worst that can happen (for the VA)  is the VA gets a no interest loan from the Veteran for years.  

[HitemStraight]

Broncovet, the old saying "deny until they die" has never had more meaningful ! They see to just make it as difficult as possible, 'jump through hoops' as often as they can make you ....

Bertha, thanks for all the good info on filing the CUE and the M21's. I will look into it and begin to put together the CUE along with backup. I believe that I will go ahead and file through the IRIS. However, might it be a good idea to send a copy to the VARO with a cover letter stating that it was filed in IRIS? Or will that just confuse them and complicate the matter?

Also, you had asked about the regional office ..... The claim was prepared and sent from the Togus VA Regional Office, which is located in Augusta, ME.

I know I saw BVA citations which addressed similar situations. I need to search for them and will post here if I find them.

 

Edited August 14, 2015 by HitemStraight
wording error

[Berta]

Yes , you could mail or Fax them the IRIS complaint.

Togus Maine

Director Edward "EJ" McQuade III

207-621-4826

207b 621 4898 (Fax)

Edward.mcquade@va.gov

VSCM Denise Benson

1-207-626-4788 Ext 5522

AVSCM   Gregg Morin

1-207-626-4788 Ext 5919